The brief interlude of what should be normalcy has ended, and we are back, at least temporarily, dealing with the contortions of Don’t Ask Don’t Tell. The Ninth Circuit Court of Appeals has stayed Judge Virginia Phillips’s injunction against the military enforcing D.A.D.T., which she found to be unconstitutional in a case brought by the Log Cabin Republicans, while it considers an appeal by the Department of Justice. That decision could come as soon as next week. (Meanwhile, we’ll see what happens to Daniel Choi’s application.)
The Obama Administration was more or less obliged to appeal, given that a law on the books was in question. But, as Walter Dellinger, a former Clinton Administration Justice Department official, pointed out in a piece for the Times, the Justice Department had a lot of leeway in how it did so. It doesn’t quite seem to have fully made use of that. From the Department of Justice’s motion:
“Should not occur,” “needed”? Why not even “Would more easily occur” and “helpful”? (And hasn’t there been an awful lot of deliberation about this already, for years?) The motion also refers to a review the Pentagon has under way, due in December:
Can’t it? Is there some idea that unruly hordes of alien and disruptive gay and lesbian soldiers will descend on unwitting bases and overwhelm them? If that’s so, what would our military do when faced with actual enemies, as opposed to Americans who want to defend their country? What’s missing here is the recognition that gays and lesbians already serve in the military. (How else did it find more than thirteen thousand to discharge under D.A.D.T.?) What is complicated and disrupting is the way they have to present false pictures of their lives to their fellow troops and commanders, and are pulled from units when they are found out. Judge Phillips was influenced, in her decision, by evidence that the military waited until overseas deployments ended to go through with D.A.D.T. discharges, even when it had all the information it needed. Losing these troops, in other words, harms readiness and is especially hard during wartime. And aren’t we at war?
Then there’s the question of honor, which, as Admiral Mullen, chairman of the Joint Chiefs of Staff, explained when he expressed his support for ending D.A.D.T., goes to the heart of this.
Obviously, there are bureaucratic issues to work out, like base housing for gay and lesbian partners. But the whole thing doesn’t have to wait on that. We expect our soldiers and junior officers to walk into Afghan villages and organize shuras with elders. Do we really think that, put in a unit with a soldier who, like some people they went to high school with, may be gay, they can’t figure that one out? (And for those who haven’t ever met a gay person, or think they haven’t, our military would be what it’s always been: a classroom for our democracy, to the military’s benefit and the rest of ours, too.) One trusts that our military has not entirely lost its capacity for improvisation.
The Washington Post, summing up the arguments, said, “It comes down to changing the culture, and top brass say they need more time.” This may be a case in which young privates are better prepared than old generals. The idea that someone would be fired for being gay may necessitate more of a cultural shift than the opposite one.
And how much time? Saying that it is not known, “prior to the review’s completion,” how quickly this can be done seems backward. It is one thing if the review is meant to come back as an action plan to meet a strict deadline; another if it is allowed to set the deadline. And what is President Obama doing to make sure Congress repeals the ban? The whole thing has an unreassuring resonance with the deadline for drawing down troops in Afghanistan: President Obama says there is one, and his commanders say, in effect, sure—but we’ll see how it goes.
The other disturbing thing in the government’s motion is the way it avails itself of the notion that judges should be particularly deferential to Congress in times of war. In that sense, this isn’t just about gay soldiers; but of course, as with civil-rights issues generally, it never was.